Defense win! Trial counsel ineffective for failing to challenge inaccurate cell site claims, calling client a “scumbag”

State v. Ronald Lee Gilbert, 2019AP2182, 6/22/21, District 1 (not recommended for publication); case activity (including briefs)

When last we saw this sex-trafficking case, the court of appeals had reversed the trial court’s denial of a Machner hearing on three claims. They were that Gilbert’s trial counsel was ineffective for failing to: challenge the admission of incorrect cell site location information (CSLI) testimony; demand discovery before trial; and impeach the State’s star witnesses with prior inconsistent statements. The discovery claim went away based on the subsequent Machner hearing testimony, but the court of appeals now again reverses the circuit court’s holdings on the other two, and orders a new trial.

As to the CSLI claim, a crucial issue at Gilbert’s trial was whether he had returned to a particular hotel on the night in question–he denied that he had. The state called a detective who was purported expert in the “pimp subculture” and then just let the expertise run wild: the detective also opined that the cell data placed Gilbert within 120 feet of the hotel at the relevant time. Turns out there was a little confusion between symbols:

′

and

°

That is: feet and degrees. (Cell towers are typically comprised of three sets of radio communicators facing in three different directions. They thus divide the area around them into three sections. 360/3=120. Degrees, not feet. The CSLI data showed that Gilbert’s phone was connecting to a component of the tower facing in a particular direction, not that it was within a particular distance.)

The court of appeals notes that trial counsel’s professed reasons for not objecting to the false testimony–that the phone was not Gilbert’s, or that it was not in his possession at the time–are contradicted by the record. Thus, it says, they do not hold water, even under the deferential standard afforded counsel said to have performed deficiently:

Trial counsel’s claim that an action was strategic does not insulate review of the reasonableness of that trial strategy. See State v. Coleman, 2015 WI App 38, ¶27, 362 Wis. 2d 447, 865 N.W.2d 190. “Trial counsel’s decisions must be based upon facts and law upon which an ordinarily prudent lawyer would have then relied.” Felton, 110 Wis. 2d at 503.

(¶¶28-31).

So counsel’s failure to object to or point out the false testimony was deficient. Also deficient was his failure to impeach both the complaining witness and his alleged accomplice with their inconsistent statements, which were plentiful and significant:

At the Machner hearing, trial counsel testified that his strategy was to argue that the conflicting statements of the witnesses created a reasonable doubt. Yet, trial counsel did not point out any of the above conflicting statements to the jury. As Gilbert asserts, in the absence of any of the above conflicting statements, the jury was presented with an “unblemished narrative” from Pratchett and J.D.E. and did not hear information directly relevant to their credibility.

….

In addition, trial counsel stated he did not address the inconsistencies related to the altercation because the allegations were “so despicable” and the jury was “cringing about this whole incident[.]” Similarly, trial counsel testified that he did not cross-examine Pratchett regarding the amplifier because he did not want to raise emotions with the jury by highlighting that “the young lady was exchanged for an amplifier[.]” However, “[e]ven distasteful facts favorable to the defense should be discussed, in a professional manner, if effective assistance of counsel is to be provided.” Coleman, 362 Wis. 2d 447, ¶¶38-39 (finding trial counsel’s decision to decline to question a sexual assault victim about a prior inconsistent statement because he believed it distasteful did not constitute a valid strategic reason).

The court finds a third deficiency as well, in counsel’s closing argument, wherein he suggested Gilbert was not credible, referred to him as a “scumbag,” and compared him to O.J. Simpson (who counsel also labeled a “scumbag”). In the court’s view, “Although trial counsel did not expressly state that Gilbert was guilty, such a message can be inferred from his remarks.” (¶45).

Turning to prejudice, the court ably explains how all three of counsel’s failings either damaged Gilbert’s credibility or bolstered that of the witnesses against him, in a trial that turned on credibility. Thus, it says, there’s a reasonable probability they affected the outcome. (¶¶47-53).